On April 4, 2017 the Federal Court of Appeals sitting in Chicago ruled that the chief federal law that prohibits discrimination, Title VII, covers discrimination on the basis of sexual orientation in Hively v. Ivy Tech Community College of Indiana.

On May 17, 2017 the Federal Court of Appeals sitting in Richmond ruled in Waag v. Sotera Defense Solutions, Inc. that an employee does not have to be returned to his or her original position after FMLA leave as long as the employee is placed in an equivalent position.

Earlier this year, the U.S. Court of Appeals for the Fourth Circuit (which has jurisdiction over Virginia) announced a new test for determining when two entities are joint employers under the Fair Labor Standards Act (FLSA).

For three decades Kaufman & Canoles has been educating human resource professionals in the Hampton Roads region on updates and changes in employment law with the Annual Employment Law Update. This years pearl anniversary theme is The Times They Are A Changin and the update will feature new information and popular employment law subjects including; workers compensation, unemployment claims and Obamacare to name a few.

Over the years, the K&C; Labor and Employment Team has advised employers to be extremely wary of disclosing personal information about their employees. A new law passed by the General Assembly, effective July 1, 2013, provides companies with additional legal support for this good human resources practice. The statute defines an employees personal identifying information as home or mobile telephone number, e-mail address, or shift times and work schedules. The new law does not prohibit the disclosure the employer retains the discretion to disclose the information if warranted but provides that the employer shall not . . . be required to disclose the data. Exceptions exist for disclosures mandated by a subpoena, civil discovery, a warrant or court order, or federal law. But in the absence of those circumstances, the new statute confirms that Virginia employers retain the right to decline to disclose personal details about their employees. --Burt H. Whitt

The federal court of appeals in Richmond reminded us of a principle that bears repeating: former employees can win retaliation suits even if the conditions about which they complain are not illegal. In a case involving Virginia Tech, the court of appeals dismissed all of the three female plaintiffs Equal Pay Act claims, but sent one plaintiffs retaliation claim under Title VII back to the district court for trial. Maron v. Virginia Polytechnic Institute and State Univ. Ms. Maron, who had complained about sex-based pay disparities, was told by a manager during a meeting intended to discuss her personal use of e-mail that she had shown very poor judgment and that she needed to stop pursuing the things that [she was] pursuing or [she would] ruin [her] career in a very public way. The manager told her she needed to become invisible and stay off the radar for the next six months at a minimum, while he would be watching [her] very, very closely. In addition, there was evidence that the manager told Ms. Maron that he did not know what [she] did, but whatever [she] did, [she] really pissed [two other managers] off. Even though these statements, reasonably perceived as threats to terminate her employment, did not rise to the level of adverse employment action needed to bring a discrimination case, they could reasonably be found to be sufficient to dissuade a reasonable employee from complaining about discrimination. Thus, reasoned the court, a jury could find in Ms. Marons favor on her retaliation claims.

A November 1, 2012 Virginia Supreme Court decision may expand radically the potential personal liability of managers, human resources personnel, and other individuals involved in the termination of employment. The sharply-split, 4-3 decision in VanBuren v. Grubb holds for the first time under Virginia law that an individual co-worker and not only a corporate employer can be held liable for the common-law tort of wrongful termination of employment. [W]e conclude that Virginia recognizes a common law tort claim of wrongful discharge in violation of established public policy against an individual who was notthe plaintiffs actual employer but who was the actor in violation of public policy and who participated in the wrongful firing of the plaintiff, such as a supervisor or manager. (Emphasis added.)

The National Labor Relations Board's (NLRB) most recent effort to maintain relevance in an era of declining union membership recently landed and it's a doozy. As you will recall, in the last two years, the NLRB has busied itself with becoming the "Facebook Police" and finding that numerous employers' social media policies were unlawful because they improperly restricted employees from making negative comments about their employer(s). Not content to stop there, however, the NLRB has now decided that employers cannot have a blanket policy of asking employees who make a complaint about employee misconduct to not discuss the complaint with other employees while the investigation is ongoing. According to the NLRB, such a policy has a tendency to coerce employees and restrains their Section 7 rights (i.e. their rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection). Instead, employers must now engage in a case by case analysis, balancing the employer's concern for the integrity of its investigation against employees' Section 7 rights: "[I]n order to minimize the impact on Section 7 rights, it was [employer's] burden 'to first determine whether in any give[n] investigation witnesses needed protection, evidence [was] in danger of being destroyed, testimony [was]in danger of being fabricated, or there [was] a need to prevent a cover up.'" Banner Health System and James A. Navarro, NLRB case 28-CA-023438 (July 30, 2012).

Due to budget constraints, the Virginia Department of Labor & Industry stopped administering Virginias Payment of Wage Act effective June 25, 2012.According to the VDOLI website, employees must now direct all claims concerning minimum wage or overtime to the Federal Department of Labors Wage and Hour Division or, if the employee has a claim for unpaid wages that is a minimum of $2,500 dollars and has documentary evidence in support of a claim, he/she should call the law firm appointed as special counsel at 1-877-VA-WAGE4.This is a dramatic change to the enforcement of the Virginia wage-hour law. --Burt H. Whitt

Like many employment litigation attorneys, more and more of my practice involves federal wage and hour issues. One potent but, in my experience, underutilized tool in an employer's wage and hour arsenal is the fluctuating workweek (half-time) method of overtime compensation. The fluctuating workweek method of overtime compensation requires an employer to pay an employee a fixed salary that is subject to the FLSAs salary basis rules.[1] This salary is intended to cover all straight time hours of work during a workweek. Thus, when an employee works more than forty (40) hours in a workweek, all of his or her straight time hours have been paid and the employer only owes the additional one-half overtime premium. It is generally good practice to have a written understanding with employees who are being paid pursuant to the fluctuating workweek method.

The idea that some businesses misuse the "independent contractor" label is not new. Indeed, the "independent contractor" costs less by avoiding certain state and federal taxes and is not subject to the protections of laws such as the Fair Labor Standards Act, the Family and Medical Leave Act, and state unemployment laws, among others. For these reasons, businesses have been misusing the label for years.